DOCKET NO. 021-R10-1001
DOCKET NO. 045-R10-102
EVA FENTER
V.
QUINLAN INDEPENDENT
SCHOOL DISTRICT
§
BEFORE THE
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§
§ COMMISSIONER OF EDUCATION
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§
§
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner, Eva Fenter, appeals the action of Respondent, Quinlan Independent
School District, concerning her grievance. Joan Stewart is the Administrative Law Judge
appointed by the Commissioner of Education to preside over this case. Petitioner is
represented by Daniel A. Ortiz, Attorney at Law, Arlington, Texas.
Respondent is
represented by Mark P. Tilley, Attorney at Law, Austin, Texas.
Administrative
The
Law Judge issued a Proposal for Decision recommending that Petitioner’s appeals be
denied in part and dismissed in part. Exceptions and replies were timely filed and
considered.
Findings of Fact
The following Findings of Fact are supported by substantial evidence:
1.
Petitioner, at all times relevant to this Petition, was employed by
Respondent as an intermediate school librarian.
2.
Petitioner is certified to work as a librarian in the public schools in the
State of Texas.
3.
Petitioner received an employee appraisal from Respondent on or about
May 24, 2001.
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4.
Respondent issued a professional growth plan to Petitioner on August, 17,
5.
Petitioner’s job duties are to check out books; check in books; shelve
2001.
books; collect book fines; assist teachers; assist with A/R program as needed (testing);
assist with book fair; enter every book in the library computer system; book inventory;
provide positive feedback/climate to students/teachers; and keep library neat and
organized.
Discussion
Performance Appraisal
Petitioner argues that Respondent administered a performance appraisal in
violation of the school laws of Texas. Petitioner asserts that the performance appraisal
was in violation of section 21.351, which is in subchapter H of the Texas Education Code
and 19 Tex. Admin. Code section 150.1003. This appeal, at its most essential level,
requests the Commissioner to define the term “librarian” as synonymous with the term
“teacher” wherever the term “librarian” is found within the Texas Education Code.
Petitioner cites section 21.201, which is in subchapter E, of the Texas Education
Code to support her argument. Section 21.201 provides in pertinent part as follows:
SUBCHAPTER E.
21.201
TERM CONTRACTS
Definitions
In this subchapter:
(1) “Teacher” means a superintendent, principal, supervisor,
classroom teacher, counselor, or other full-time professional
employee who is required to hold a certificate issued under
Subchapter B or a nurse. The term does not include a person
who is not entitled to a probationary, continuing, or term
contract under Section 21.002, an existing contract, or district
policy.
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Petitioner argues that because the definition of “teacher” in subchapter E would include
librarians, and because the term “teacher” in subsequent subchapters F and G must
logically include librarians, then librarians and other “professional employees required to
hold a certificate under subchapter B or a nurse” are included in the definition of
“teacher” in subchapter H. Thereby, under Petitioner’s theory, librarians and all other
“professional employees” must be treated exactly like teachers under the appraisal
process in Chapter 21, subchapter H of the Texas Education Code, and 19 Tex. Admin.
Code section 150.1001 et seq.
Petitioner argues that “librarians” are “classroom teachers” for the purposes of
appraisals and growth plans. Petitioner’s argument fails because Chapter 21, subchapter
H, although it follows subchapters E, F, and G sequentially in the statute, is not a
progression of the concept of a Subchapter E teacher contract. A hearing held under the
statutory authority of Subchapter F, must be in regard to a teacher contract. A Subchapter
G appeal to the Commissioner of Education regarding the outcome of a Subchapter F
hearing is in regard to a teacher contract. Subchapter H does not pertain to teacher
contracts. Subchapter H is entitled “APPRAISALS AND INCENTIVES.” The statutory
provisions of Subchapter H deal with teacher appraisals and incentives. The definition of
the term “teacher” in Subchapter E does not apply as a definition for the term “teacher” as
it is utilized in Subchapter H. Librarians and “other professionals” with Chapter 21
contracts are not “teachers” as that term is used in Subchapter H. Therefore, the statutory
and rule provisions regarding teacher appraisals are only applicable to classroom teachers.
These provisions are inapplicable to librarians and “other professional employees” that
hold Chapter 21 contracts.
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Professional Growth Plan
Petitioner argues that the professional growth plan issued to Petitioner by
Respondent is in violation of the school laws of Texas, violating 19 Tex. Admin. Code
section 150.1004, and section 21.404 of the Texas Education Code. 19 TAC section
150.1004 by its own terms only applies to teachers. This rule is a mandatory provision
that is applicable when a “teacher” is designated as a “teacher in need of assistance.” In
Petitioner’s response to the professional growth plan, which was submitted by Petitioner
as Exhibit B in the local record, Petitioner states as follows:
“I have had teaching duties taken away from me in the library. I no longer
have an opportunity to teach library skills, about books, about authors as I
once did. …My main responsibility is to check out/in books”....
By her own words Petitioner has provided substantial evidence that she is not a teacher.
Petitioner is not a teacher, and therefore 19 Tex. Admin. Code section 150.1004 is
inapplicable to Petitioner’s professional growth plan.
Petitioner additionally argues that the professional growth plan administered by
Respondent violates section 21.404 of the Texas Education Code, which provides as
follows:
Each classroom teacher is entitled to at least 450 minutes within each twoweek period for instructional preparation, including parent-teacher
conferences, evaluating students’ work, and planning. A planning and
preparation period under this section may not be less than 45 minutes
within the instructional day. During a planning and preparation period, a
classroom teacher may not be required to participate in any other activity.
Petitioner again argues that librarians are “classroom teachers” for the purposes of
appraisals and growth plans, in that the overriding purpose of the appraisal and growth
plan is to inform the employee of perceived deficiencies and to allow the supervisor to
work with them while they remediate their performance. This argument fails.
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Section 5.001(2) of the Texas Education Code provides as follows:
“Classroom Teacher” means an educator who is employed by a school district and
who, not less than an average of four hours each day, teaches in an academic
instructional setting or a career and technology instructional setting. The term
does not include a teacher’s aide or a full-time administrator.
The Commissioner has further clarified the definition of “classroom teacher” to mean “an
individual who teaches the Texas Essential Knowledge and Skills. See 19 Tex. Admin.
Code Section 153.1022.” Baggett v. El Paso Independent School District, Docket No.
081-R3-300 (Comm’r Educ. 2002). Petitioner argues in her First Amended Petition for
Review that her “responsibilities consist solely of clerical work, i.e., checking in and out
books, shelving books, and keeping the library neat and organized.” Exhibit 8 in the local
record details Petitioner’s job description.
Librarian Responsibilities:
1. Check out books
2. Check in books
3. Shelve books
4. Collect book fines
5. Assist teachers
6. Assist with A/R program as needed (testing)
7. Assist with book fair
8. Enter every book into the library computer system
9. Book inventory
10. Provide a positive atmosphere that facilitates learning
11. Provide positive feedback/climate to students/teachers
12. Keep library neat and organized
Librarians are valued and important professional members of the educational
community; however, a librarian is not a “classroom teacher” unless he or she meets the
requirements of section 5.001(2) of the Texas Education Code and 19 Tex. Admin. Code
section 153.1022.
Substantial evidence supports Respondent’s determination that
Petitioner is not a classroom teacher and that section 21.404 of the Texas Education Code
does not apply to the administration of her professional growth plan.
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Section 21.405
The parties have agreed that Petitioner’s claims under section 21.405 of the Texas
Education Code, in relation to the Petitioner’s professional growth plan, are now moot.
Restriction of Duties
Petitioner argues that Respondent has wrongfully restricted her job duties as a
librarian in violation of 19 Tex. Admin. Code section 230.311. The heading of Section
230.311 is “Chapter 230, Professional Educator Preparation and Certification; Subchapter
J, Certification Requirements for Educators Other than Classroom Teachers and
Educational Aides; Rule 230.311, Learning Resources Specialist.” This section of has
nothing to do with either the determination or restriction of a librarian’s duties. A
librarian’s duties are not established by the school laws of Texas. Petitioner does not
state a claim upon which relief can be granted concerning a librarian’s duties and
therefore does not invoke the jurisdiction of the Commissioner on this issue.
Exhaustion of Remedies
Petitioner argues that Respondent never asserted that she wasn’t entitled to the
protections afforded to teachers until the Level III hearing before the board of trustees.
There is no statute or rule that requires the exhaustion of remedies prior to appearing
before the board of trustees. Respondent’s local policy does not require the exhaustion of
remedies prior to appearing before its board of trustees.
Conclusion
A librarian is not a classroom teacher, unless he or she meets the requirements of
section 5.001(2) of the Texas Education Code and 19 Texas Admin. Code section
153.1022. There is substantial evidence to support the Respondent’s finding that the
Petitioner is a librarian and not a classroom teacher. The school laws of Texas were not
violated in the administration of Petitioner’s appraisal. The school laws of Texas were
not violated in the administration of Petitioner’s professional growth plan. Rule 230.311
does not prescribe or restrict a librarian’s duties. A school district is not required to
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exhaust its defenses prior to the hearing before the board of trustees unless required to do
so by local policy. The parties have agreed that Petitioner’s claims under section 21.405
of the Texas Education Code are now moot.
Conclusions of Law
After due consideration of the record, matters officially noticed, and the foregoing
Findings of Fact, in my capacity as Commissioner of Education, I make the following
Conclusions of Law:
1.
The Commissioner has jurisdiction over these appeals under Texas
Education Code section 7.057, except as outlined below as to the claim regarding the
restriction of the duties of a librarian.
2.
The administration of Petitioner’s professional growth plan was not in
violation of 19 Tex. Admin. Code section 150.1004.
3.
The administration of Petitioner’s appraisal was not in violation of 19 Tex.
Admin. Code section 150.1001.
4.
The administration of Petitioner’s appraisal was not in violation of section
21.351 of the Texas Education Code.
5.
A librarian is not a classroom teacher unless he or she meets the
requirements of section 5.001(2) of the Texas Education Code and 19 Texas Admin.
Code section 153.1022.
6.
Petitioner is not a classroom teacher.
7.
The restriction of a librarian’s duties does not violate the school laws of
Texas, and does not state a claim upon which relief can be granted.
8.
The restriction of a librarian’s duties does not invoke the jurisdiction of
the Commissioner of Education pursuant to 19 Tex. Admin. Code section 157.1056.
9.
Respondent is not required to exhaust its remedies prior to the hearing
before the board of trustees.
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10.
Petitioner’s claims under section 21.405 of the Texas Education Code are
11.
Petitioner’s appeals should be denied in part.
12.
Petitioner’s appeals should be dismissed in part, in regard to the claim of
moot.
the restriction of a librarian’s duties.
ORDER
After due consideration of the record, matters officially noticed and the foregoing
Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Education,
it is hereby
ORDERED that Petitioner’s appeals be, and are hereby denied in part; and
FURTHER ORDERED that Petitioner’s appeals should be dismissed in part, in
regard to the claim of the restriction of a librarian’s duties.
SIGNED AND ISSUED this 5th day of NOVEMBER, 2002.
______________________________________
FELIPE ALANIS
COMMISSIONER OF EDUCATION
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